Supervision of the execution of the judgments and decisions of the European Court of Human Rights: implementation of the Interlaken Action Plan – elements for a roadmap

Document revised in the light of the discussions at the 1086th “Human Rights” meeting of the Committee of Ministers (1-3 June 2010)

Document prepared by the Department for the Execution of Judgments of the European Court of Human Rights (DG-HL) with a view to its examination by the GT-SUIVI.Interlaken at its meeting on 29 June 2010

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At the CMDH meeting of 1-3 June, the Deputies asked the Secretariat to provide the GT-SUIVI with a roadmap for reconsidering the process of supervision of the execution of judgments and decisions of the Court in order to enable the GT-SUIVI to assess and endorse the proposals identified and decide on follow-up action.

INTRODUCTORY REMARKS

1. In May 2010, the Committee of Ministers, at its 120th session, instructed the Deputies “to step up their efforts to make execution supervision more effective and transparent and to bring this work to a conclusion by December 2010” in order to implement section F of the Interlaken Action Plan2.

2. In accordance with that decision, at the 1086th “Human Rights” meeting of the Committee of Ministers (1-3 June 2010) devoted to the supervision of the execution of judgements of the European Court of Human Rights, an initial exchange of views took place on the basis of written proposals by the delegations of France (DD(2010)263) and Norway (DD(2010)293) and a document by the Secretariat (“roadmap”, CM/Inf(2010)28). The delegations of Denmark, Germany and the United Kingdom subsequently confirmed in writing their positions expressed during the meeting. At the end of the discussion the Deputies instructed the Secretariat “to prepare a revised document in the light of the discussions and proposals made, with a view to its examination by the GT-SUIVI.Interlaken”.

3. During the discussion, the Deputies emphasised the importance of adapting supervision to present-day realities, taking into account the principle of subsidiarity, the impact of the entry into force of Protocol No. 14 to the ECHR and the ever-increasing number of complex cases (in particular pilot judgments and other judgments raising significant systemic or structural problems that may give rise to numerous clone or repetitive cases).

4. A broad consensus emerged on the need to reconsider the supervision process by placing greater emphasis on the fundamental principle that execution is primarily the responsibility of states. In order to manage the 9,000 cases pending before the Committee of Ministers in the most optimised and efficient manner, the Deputies unanimously underlined the need for prioritised and ranked supervision.

5. The proposals below take up the main ideas drawn from the discussion and aim at placing them into an operational perspective.

A) A MORE EFFECTIVE SUPERVISION

6. Improved ranking of cases was considered necessary (see in particular the contribution of France (DD(2010)263) in order to focus the supervision efforts by the Committee of Ministers on the important cases. The examination of cases should also be prioritised, in particular with a view to reserving the debate at CMDH meetings mainly for situations in which the execution process requires the collective support of the Committee of Ministers. The Deputies largely supported the principle of continuous supervision3 - detached from the DH meetings’ schedule- which would operate according to a twin-trackapproach (to use the United Kingdom’s expression): simplified supervision and enhanced supervision.

In this regard the Deputies emphasised the importance of establishing clear criteria for the application of the two supervision methods envisaged.

7. Simplified supervision would entail only formal involvement of the Committee of Ministers at the end of the execution phase in order to endorse the measures adopted by the state on the advice of the Execution Department, which would have followed, in close cooperation with the state, the whole execution process (for example, monitoring of prompt implementation of the action plan, and positive assessment of the results presented in the action report). This lighter procedure should also permit speedy closure of cases by a final resolution4. This would obviously require information on the progress of action plans and information contained in action reports to be promptly transmitted and easily accessible by all delegations at all times (see below para. 15).

8. Enhanced supervision would be applied to cases which, due to their nature or the type of issue concerned, require the Committee of Ministers’ attention as a matter of priority. Cases which might automatically be subject to this supervision method are:

9. It was emphasised that the enhanced supervision method should not necessarily mean that the cases concerned should be systematically debated. Indeed, the objective of enhanced supervision is to arrive at effective, speedy and long-term solutions to problems that are the root cause of violations found by the Court. Thus, enhanced supervision by the Committee of Ministers may be conducted by means other than debate, e.g. support by the Execution Department in drawing up and implementing action plans; more intensive bilateral consultations and/or enhanced technical cooperation programmes with national authorities and regular reports to the Committee of Ministers on the progress of execution.

10. More particularly with regard to cases proposed for debate, the discussions highlighted the need to revise the criteria laid down in 20045 and to provide adequate documentation distributed in a timely manner by the Secretariat, clearly indicating the questions on which the Committee of Ministers is required to decide (see below para. 16).

11. As the Deputies underlined during the discussions, these two practical supervision methods should be parallel and interdependent. A flexible approach in this regard, which would make it possible to move from one supervision method to the other, was considered essential. For example, a case subject to enhanced supervision could at any time be transferred to simplified supervision if the progress of execution seemed, on the basis of action plans/reports, to be assured. Similarly, enhanced supervision could be proposed for any case subject to simplified supervision if circumstances so required: for example, if there were significant slow submission/implementation of action plans; differences of opinion between the state and the Execution Department as to the proposed measures, or at the request of the respondent state, another delegation or the Secretariat. More particularly with regard to slow submission and/or implementation of action plans, transfer to enhanced supervision could be a first signal. A debate would be proposed if, notwithstanding that signal, the situation persisted.

12. Proposals for transfer from one supervision method to the other should be duly reasoned in order to enable the Committee of Ministers to take an informed decision.

13. Putting in place the two supervision methods referred to above requires states’ full adherence to the fundamental concept of action plans/reports6 and to the obligation to provide the Committee of Ministers with detailed, up-to-date information on developments in the process of executing judgments that are binding on them7. During the discussions a number of detailed operational methods (see in particular the proposals of Norway DD(2010) 293) were suggested in this area, the underlying idea being to become detached from the meetings’ schedule in order to be more in line with the projected timetables contained in the action plans. In other words, the idea would be to put an end to the automatic supervision intervals currently in force. Consideration should be given to revising Supervision Rule no. 7 in order to reflect the above considerations. It should be noted that the United Kingdom delegation proposed amending the supervision rules to reflect the requirement to submit actions plans within a six-month deadline. If the state did not comply with that requirement, the Committee would be informed and would discuss the matter.

14. The question was raised of simplified treatment of supervision of payment of just satisfaction. It was recalled in this regard that the present system was already flexible and informal in that the Committee of Ministers accepts any information from the Government indicating the date, the beneficiary and the amount of payment. Several delegations nonetheless mentioned the possibility of supervision only in the event of a challenge by the applicant. Such a change requires more detailed consideration, however, in view of a certain number of further measures that this would require. In particular, it would be necessary to inform all applicants of their new responsibility and to give them the means of exercising it. The interests of certain applicants (persons in detention, minors, wards, etc.) would also need to be protected by various means. When looked at from this point of view, simplified treatment might require additional resources. The proposed simplified system could be applied on a trial basis for the supervision of friendly settlements.

B) A MORE TRANSPARENT AND MORE VISIBLE SUPERVISION

1) Internal transparency

15. In order for the recommended new system to work, first “internal” transparency” must be improved, that is between states, the Committee of Ministers and the Secretariat concerning the information relevant to supervising execution. The information should be presented in a readable, understandable and succinct manner. Access to it should be made easier. In addition, the present system of sections should be revised in order to make them more readable so that states have a clear idea of the state of progress of their own cases and cases concerning other countries. In this regard, according to the proposals made by France the current system should be replaced with exhaustive ranking categories that could be consulted by states at any time based on the current Section 3 model8. Additional I.T. investment will be necessary. 16. It is equally essential to allow the Committee of Ministers to hold an informed collective debate based on exhaustive documents for each case setting out the questions submitted to the Deputies that await reply. Those documents should be circulated in a timely manner. Transparency concerning the debate also requires that the choice of cases be duly reasoned. The German delegation suggested some practical avenues in this regard (see above para. 10).

2) External transparency and visibility

17. Broad and timely public access to information is one of the responses to the requirement for visibility highlighted in the Interlaken Action Plan. This will require significant investment in order to develop appropriate I.T. tools to ensure optimum visibility that also takes into account any requirements for confidentiality.

18. The Interlaken Action Plan also insists on the enhanced visibility of the supervisory action of the Committee of Ministers with regard to important cases. This objective requires further efforts both at the level of the Committee of Ministers, in particular regarding the visibility of its important decisions and interim resolutions, and at the national level in accordance with the principles put forward in Recommendation (2008)2 on efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights.

19. Transparency and visibility of the action of the Committee of Ministers are essential in order to improve synergies in keeping with the spirit of Interlaken. According to the United Kingdom delegation, ways could be explored to ensure political engagement in support of the action of the Committee of Ministers, in particular greater involvement by the Secretary General and an enhanced role for the Parliamentary Assembly. It is also essential to enhance synergies with other Council of Europe organs (the Commissioner for Human Rights, the Venice Commission, the CEPEJ, the CPT) (see the contribution of the Delegation of Norway, DD(2010)293)9.

20. Improving internal and external transparency will obviously require a certain number of developments, including I.T. tools, which will require additional resources.

3) Interaction with the Court

21. The importance of enhanced interaction between the Court and the Committee of Ministers was also mentioned, in particular in the context of the pilot-judgment procedure (see inter alia DD(2010)194 letter from the Registrar of the Court to the Chair of the GT-SUIVI.Interlaken). This would also involve enhanced cooperation between the Registry of the Court and the Execution Department.

C) OTHER CONSIDERATIONS

22. Some delegations suggested other possibilities which could be explored, including, in particular, the appropriateness of reviewing the frequency or length of CMDH meetings, the setting up of specialised rapporteur groups within the Committee of Ministers. Other questions were raised as to the role of the Committee of Ministers with regard to communications of the Court under Rule 39 of the Rules of Court and to unilateral declarations.

23. The question of the establishment of a hybrid working group (representatives of the Committee of Ministers, the CDDH and its subordinate groups, and the Execution Department) to examine certain questions further was also discussed. It will be recalled that the CDDH, in its meeting report (15-18 June), indicated its availability to participate in such a group.

D) CONCLUSIONS

24. At the end of its discussion during the present meeting, the Group could instruct the Secretariat to prepare a detailed document on the modalities for setting up the two new methods of supervision (namely, simplified and enhanced) of the execution of the judgments and decisions of the Court, as described in paras 6-18 above, with a view to its examination during the next Human Rights meeting of the Deputies (14-15 September 2010). The GT-SUIVI could also instruct the Secretariat to examine further the question of whether the changes proposed above would require amendment of the supervision rules.

25. The GT-SUIVI is also invited to give further consideration to the proposals concerning the development of synergies contained in para. 19 and the other considerations mentioned in paras. 21 and 22 with a view to deciding on follow-up action regarding those issues.

26. The GT-SUIVI is finally invited to declassify the present document in order to enable the various bodies involved in the Interlaken process, including in particular the CDDH and its subordinate groups, to take note of it.

Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.

Note 11. The Conference stresses the urgent need for the Committee of Ministers to:

Note a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;

Note b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.”

Note 3 Such supervision takes place from the time the Court transmits a judgment/decision to the Committee of Ministers and until it decides to close examination of it. All cases are technically considered to be on the agenda of every CMDH meeting until their closure. It would be appropriate to consolidate this principle in the Committee of Ministers’ supervision rules. In the meantime, in practical terms, the Committee of Ministers could adopt a general decision for that purpose. The need for other transitional arrangements remains to be defined. .

Note Final resolutions in simple cases could be standardised and have no appendix in order to accelerate their adoption. The Committee of Ministers might also adopt a single resolution grouping together, for example, cases with similar execution measures. This method could also be used to close old cases in which execution measures had been taken some time ago.

Note 6 The idea of action plans was referred to in relation to new working methods as early as 2004. Then in 2009 the Committee of Ministers, having emphasised the importance of the speediest possible identification of the measures required to execute a judgment of the European Court, invited states to provide within six months of the date upon which the judgment became final an action plan and/or an action report as defined in document CM/Inf/DH(2009)29rev. In March 2010, at the 1078th “human rights” meeting, the Deputies repeated this request, emphasising that “information on the mere payment of just satisfaction cannot be considered to constitute a satisfactory action plan, and that the total, unmotivated absence of any provision on the part of the respondent state within six months of the date upon which the judgment became final is liable to slow down the process of supervising the execution of the European Court's judgments”.

Note See, for example, the judgment of the Court (Grand Chamber) in Verein gegen Tierfabriken Schweiz (VgT) of 30 June 2009, para. 87.

Note See also in this connection, the proposal of France: “The state could therefore be responsible for proposing a category (A or B) for each case on submission of the action plan or action report for the said case. Obviously, the Department for the execution of judgments of the Court would be free to object to or change the category in the event of disagreement. In the absence of a proposal from the state, the rank would be set by the Department” (DD(2010)263, para. 9).

9 In this regard it could be useful to recall the Declaration by the Committee of Ministers at the 116th Ministerial session (May 2006) in which it instructed the Deputies “to initiate tripartite meetings between representatives of the Committee of Ministers, the Parliamentary Assembly and the Commissioner for human rights to promote stronger interaction with regard to the execution of judgments.”